the objectionable conditions are directly owing to the state of water in the pond. That every change there is immediately followed by a corresponding change on the marsh.

It is unnecessary to pursue the various facts and contending views. The essence of the controversy is whether complainants are right in their claim that the defendant raises the water above the old mark originally assented to and which the arbitrators caused to be indicated permanently on the stump. Because if they are not correct in this, and the defendant does not exceed the old limit, there is no foundation in the case for equitable interference. Indeed this may be regarded as virtually conceded. The actual extent of use formerly acknowledged to be right, seems not to be controverted. The alleged grievance is that it is exceeded. Coming then to the substantial question-is the state of the proofs such as to justify the Court in reversing the decree below and in proceeding to grant a decree here in favor of complainants? A thorough examination and re-examination of the record leads to an answer in the negative. No solid ground of definite relief can be deduced from the proceedings. At least there is no such distinct and certain showing as would warrant the Court in setting aside the decision of the circuit judge and in giving a decree against the defendant.

There are two or three questions of fact, which, in case it were necessary to have them settled, might with great propriety be submitted to a jury, and after much consideration it is thought best to make the dismissal without prejudice to any future proceedings at law, nor to any proceedings in equity in case the facts shall have been decided by a jury adversely to the defendant. The defendant will recover his

costs.

The other Justices concurred.

JOSEPH BUSHEY, SMITH R. WOOLEY AND DON M. DICKINSON
V. PETER RATHS.

Attachment released by appeal-Place of seizure-Amendment of constable's return-Debt on appeal bond-Keeping animals taken on attachment.

An appeal bond releases the lien of a justice's attachment.

If a constable's return to a justice's attachment is silent as to the place of seizure, it is presumed to have been, as directed by Comp. L., $ 5275, "within the county."

Whether there need be notice of an amendment of a constable's return to a justice's writ of attachment, where the writ was not personally served and the defendant has not appeared-Q.

Special appearance in a justice's court for the sole purpose of moving to quash a writ, gives no right to thereafter serve the attorney with notice of an amendment of the constable's return.

An action of debt lies upon a bond given on appeal from before a justice, where the effect of the appeal is to release an attachment lien, or to delay the levy of execution.

A constable has no authority to work animals which he has taken on an execution, to pay the expense of keeping them.

Error to Wayne. Submitted Oct. 22. Decided June 12.

DEBT. Defendants bring error. Affirmed.

Griffin & Dickinson for plaintiffs in error.

James H. Pound for defendant in error.

Delay occa

sioned to an obligee in a bond is a sufficient consideration for an action upon it: Crist v. Burlingame 62 Barb. 357; Locke v. Mc Vean 33 Mich. 473; White v. Reed 15 Conn. 457; Bell v. Bruen 1 How. 169; Hall v. Fowler 6 Hill 630; Leonard v. Speidel 104 Mass. 356; Thomas v. Hubbell 15 N. Y. 405; Rapelyer v. Prince 4 Hill 119; Iredell v. Barbee 9 Ired. 234; Coleman v. Bean 3 Keyes 94; Franklin v. Depriest 13 Grat. 257; People v. Norton 5 Seld. 179; Norton v. Mulligan 4 Strobh. 355; Outlaw v. Yell 8 Ark. 352; Bruce v. United States 17 How. 437;

Brandt on Suretyship $$ 20, 30, 31; Allbee v. People 22 Ills. 533; Redfield v. Haight 27 Conn. 31; Remsin v. Graves 41 N. Y. 471. The execution of a bond precludes the parties thereto from denying the jurisdiction to proceed against the assets released by it: Pritchett v. People 1 Gilm. (Ill.) 525; Morse n. Hodsdon 5 Mass. 341; United States v. Linn 15 Pet. 290; Leonard v. Vredenburgh 8 Johns. 29; Thompson v. Buckhannon 2 J. J. Marsh. 416; United States v. Tingey 5 Pet. 115; Decker v. Judson 16 N. Y. 439; Hill v. Burke 62 N. Y. 116; Gibbons v. Berhard 3 Bosw. 685; Prentiss v. Holbrook 2 Mich. 372; Lothrop v. Southworth 5 Mich. 436, 48; Dorr v. Clark 7 Mich. 310; Goebel v. Stevenson 35 Mich. 172; Trimble v. State 4 Blackf. 435; Sherry v. Foresman 6 Blackf. 56; Sumpter v. Wilson 1 Ind. 144; Sammons v. Newman 27 Ind. 508; Speake v. United States 9 Cr. 28.

MARSTON, C. J. On the 28th day of February, 1877, Peter Raths commenced an action by attachment in justice's court against Joseph Bushey; property was attached under the writ, but no personal service, and on the 9th day of April, 1877, judgment was rendered therein against the defendant. April 14th, 1877, defendant filed with the justice an affidavit for a special appeal and bond, and a return thereto was made on the 17th. September 17th, 1878, the appeal was by the circuit court dismissed because the entry fee had not been paid; and on the next day an execution was issued by the justice upon the judgment rendered by him, and returned November 17th unsatisfied, no goods having been. found. September 25, 1878, the case was re-instated in the circuit court, upon condition that appellant should pay $10 costs, waive his special appeal, and proceed to trial on the merits at the then term of court. And December 16th, 1878, this order not having been complied with, was vacated. February 1st, 1879, an alias execution was issued by the justice, returned April 2d, 1879, unsatisfied. The present action was thereupon brought upon the appeal bond, trial

had, judgment for the plaintiff and the cause brought here on writ of error.

The defence relied upon in the court below and in this court is, that the justice did not acquire jurisdiction of the person of defendant Bushey, the return of the constable being defective. The defendant appeared specially in the justice's court and made a motion based on such defective return, which was overruled. An amendment of the officer's return was afterwards, on the adjourned day, in the absence of defendant, and without notice, permitted and made, but this also, it is claimed, even if properly made, was insufficient to give the court jurisdiction.

Where a constable returns that he has attached goods and chattels by virtue of a writ of attachment issued out of a justice's court, and the return is silent as to the place of seizure, we must presume that the officer did not violate the provisions of the statute which commands him to take the property of the defendant "within his county."

It is only from an inspection of the affidavit for appeal, of defendant Bushey, that we are enabled to ascertain what amendment was permitted by the justice and made by the constable. The return made by the justice on the appeal shows the amended return only, which on its face, as printed, does not indicate an amendment. The amended return in iny opinion was sufficient in substance to give the court jurisdiction, and for the reasons hereinafter given, I do not consider it necessary to pass upon the power of a justice to permit an amendment without notice. Our statute in reference to amendments is very broad and has always been construed liberally in furtherance of the objects thereof, and whether the same rule would apply in justice's court as in the circuit, requiring notice to be given in a case where the defendant had not been personally served with process and had not appeared, may at least be a matter of doubt, as to require notice would be to deny the power of amendment in all such cases. The defendant's appearance on the returnday by attorney, for the sole and special purpose of a motion to quash, would not authorize the service of notice upon

such attorney thereafter, within the ruling in Watson v. Hinchman 41 Mich. 716. And upon the assumption that the defendant could not be found, then no notice of such proposed amendment could be given. But as already said the necessity for such notice in a justice's court, in a case like the present, we do not pass upon.

Irrespective of what the result might have been in the Circuit Court upon the special appeal, had it been pressed by the appellant, I think we cannot say, from an inspection of the files and record of the justice as returned by him to the Circuit Court, that the judgment rendered by him could be considered a nullity for want of jurisdiction, or that the plaintiff therein might not, could he have promptly sued out an execution thereon, have obtained satisfaction thereof in whole or in part. He had, by virtue of his attachment, obtained a lien upon certain personal property of the defendant, out of which he might have realized.

But it is urged in this case, that the motive which influenced the sureties to execute the appeal bond was the fact that this property was in the hands of the officer by virtue of the writ of attachment, and would or should be held by him to wait an execution. There is no evidence tending to show what became of the property attached. The executions were not delivered to the same constable who served the writ of attachment. The property attached consisted of a horse, cow, wagons and other personal property.

Where a justice's court attachment is delivered to a constable the statute commands him to attach so much of defendant's goods and chattels as will be sufficient to satisfy the demand, and safely keep the same to satisfy any judgment that may be recovered by the plaintiff therein. 2 Comp. L.

5274. In cases commenced by attachment, execution shall, on application of the person in whose favor the judgment was rendered, be issued forthwith, unless stayed. § 5394. In suits commenced by attachment, where animals are seized and expense incurred in the keeping thereof, it is made the duty of the justice, upon the trial of the suit, to examine witnesses as to such expense, from the time of seizure up to and